Defamation lawsuit dismissed against Winder, DDM

Mike Winder, mayor of West Valley City, poses outside his office in West Valley Tuesday, November 8, 2011. (Brian Nicholson)

SALT LAKE CITY — A defamation lawsuit filed by a former UTOPIA executive against the company, West Valley City, Mayor Mike Winder and Deseret Digital Media was dismissed by a federal judge Monday.

In the ruling, U.S. District Judge Ted Stewart found that an article Winder wrote under a fake name and published on KSL.com about Chris Hogan, who served as the vice president of marketing, sales and business development of the fiber-optic network until March 2011, did not constitute defamation, false light invasion of privacy, civil conspiracy or intentional infliction of emotional distress.

"Obviously we're very elated with the court's ruling," Deseret Digital attorney Jeff Hunt said Monday. "The court looked at this in a very considered and thoughtful manner and concluded that the KSL article — which was the crux of Mr. Hogan's case — was not defamatory. What the court found was that the statements in the KSL article consisted of expressions of opinion, which are constitutionally protected or were not defamatory as a matter of law."

Hogan claimed he was fired after expressing concerns over alleged bid rigging at UTOPIA, which he said prompted the company to accuse him of extortion. According to the lawsuit filed in January, the company, and Winder, decided to "use the media to handle any negative publicity." UTOPIA allegedly turned over unsealed court documents to Winder, who used the fake name Richard Burwash to write an article, the lawsuit stated. Winder later said he was only given the documents after they were unsealed.

Winder, using the fake name and profile, submitted the article to Deseret Connect, a freelance contributor network through which stories are submitted to its media partners.

The Burwash article was published on KSL.com, which is owned by DDM, under the headline: "Former UTOPIA contractor accused of extortion." The lawsuit stated that the article reported that Hogan was fired for "performance issues" and had "exhibited erratic behavior."

Hogan claimed the article "achieved its desired effect" and said his name and reputation were tainted.

But Stewart said he found no evidence of a conspiracy between the various UTOPIA executives, attorneys and Winder. The judge also determined that they did not use the power of their positions to get the article published. The fact that Winder used the fabricated Burwash identity only further distanced himself from his position and West Valley City.

"Winder clearly intended to divorce himself from, not brandish, his government power by posing as a private citizen when writing the article," Stewart wrote.

Stewart found the statements about "performance issues" and "erratic behavior" were merely opinions of those quoted in the article. He determined that if the article and its headline had implied that Hogan was facing formal extortion charges or that he was an extortionist, it could potentially be defamatory. But the judge's view was that there was no such implication in the article.

"The article clearly communicates that the extortion statements were made in the context of heated civil litigation," Stewart wrote. "Given this context, the court finds that reasonable readers would 'have perceived that the word (extortion) was not more than rhetorical hyperbole, a vigorous epithet used by those who considered (Hogan's) negotiating position extremely unreasonable,' rather than reference to charged criminal conduct."

"Throughout this process, we have acted responsibly," said Matt Sanders, general manager of Deseret Connect, Deseret Digital Media. "We are pleased with the judge's decision."

Hunt, who often handles First Amendment, access and media-related cases, said the judge's ruling will help in future cases in that it differentiates between fact and opinion. He said it provided some precedent about the differences between the two types of speech while also guaranteeing the rights of the press.

"I think it does have some broader impact in the state because it makes clear that the news media can report the positions of parties in heated legal battles and other disputes without fear of incurring defamation liability," he said.

Winder said the ruling was a welcome end to what has been a difficult year. From the death of his mother last September, to the controversial announcement about the Burwash pseudonym to an unsuccessful bid for county mayor, he said this year has been the toughest of his life.

"It's been quite the year," he said. "I feel like we're moving forward and today's court decision is part of that."

He said that he is grateful for West Valley City, its residents and the opportunity he has to serve as its mayor.

"I want people to know I do feel bad for the problems I caused for DDM and others and hope that today is the day we move forward," he said.

Hogan's attorney, Steve Christensen, said his client plans to appeal Stewart's decision to the 10th Circuit Court of Appeals. A notice of appeal was filed Monday.

"Mr. Hogan's contention is that he has stated a claim on various different legal theories, including defamation false light and other issues that have caused him damage and he believes the evidence has supported his claims," Christensen said. "We think that it is a case that needs to be reviewed by the appellate court."